In a unanimous decision reached by differing concurring opinions, the Supreme Court of the United States finally resolved the question left open by Crawford asking whether statements made to persons other than law enforcement trigger the Confrontation Clause. Publishing its decision in Ohio v. Clark today, the Court unanimously voted that statements made to a teacher at a school program by a child suffering from domestic abuse were not testimonial, and so not barred by the Sixth Amendment Confrontation Clause.
The arguments before the court in this case were fierce, as the Court was poised to make a decision that would either limit a defendant’s Sixth Amendment right to Confrontation or restrict prosecutions of countless cases involving child abuse. You can click here to view a thorough outline of the facts of this case, the arguments, and the relevant law, in a prior posting on my blog.
The Majority decided this case primarily on its unique set of facts in this case, rather than by issuing a categorical legal rule. The Court explained that the record clearly reflected that abused child’s statements were not made with the primary purpose of furthering a criminal investigation or prosecution. Instead, the child spoke with the teacher with the primary purpose of addressing an ongoing emergency, and the teacher’s questions were targeted at eliminating the threat to the child’s life. The Court noted that the conversation was informal and spontaneous, and that even the child’s age (4 years old) calls to question the possibility that the child could appreciate the use of his responses in a criminal investigation while merely responding to his teacher.
Despite the Majority’s heavy reliance on the particular facts of this case to render an opinion, a few legal holdings did arise out of this case. First, the Majority opinion explained that the primary purpose test is not dispositive of the question of whether the Confrontation Clause is triggered, though it is necessary. In other words, although a statement must satisfy the primary purpose test in order to be barred as testimonial, not every statement satisfying the primary purpose test should be barred as testimonial. Both Justice Scalia and Justice Thomas took strong offense to this reading of the Court’s past decisions in their own concurrences.
Second, mandated reporters are not per se agents of law enforcement. The test remains a totality of the circumstances analysis in addition to primary purpose. Just because a teacher’s duty to report is triggered by a statement made to her does not render that statement testimonial. In other words, whether or not someone is under a legal duty to report child abuse is not dispositive, even if the statements resulting from the conversation have a natural tendency to further a prosecution.
The Majority opinion in this case seems to have avoided making any clarifications to what has been a very unclear area of constitutional law. One of the difficulties with these types of fact-specific opinions is that it leaves little guidance to courts and litigators as to how to argue these cases. The Majority opinion, written by Justice Alito, seems to have expanded the Confrontation Clause analysis beyond the relatively clear “primary-purpose” test to an analysis that requires consideration of other unidentified “conditions.” Defense attorneys will certainly continue to raise challenges and appeals in the Confrontation Clause context until the Court publishes guidance that is a bit more satisfactory.